People v. Montano

[920]

Opinion

POCHÉ, J.

Following his arrest for murder, defendant Manuel Hernandez Montano

1

was subjected to lengthy interrogation by two members of the Concord Police Department. Although defendant was advised of his constitutional rights pursuant to

Miranda

v.

Arizona

(1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], the officers had previously decided not to respect any attempt by defendant to invoke his right to remain silent. This stratagem succeeded; following numerous futile efforts at terminating the interrogation, defendant made an admission so damaging as to be tantamount to a confession. Defendant made a full confession to the murder at a second interrogation session conducted several hours later. The trial court granted defendant’s motion to suppress remarks he made at the first interrogation session, but refused to exclude evidence of the confession. The issue of defendant’s guilt was thereafter submitted to the trial court, which found him guilty of attempted rape (Pen. Code, §§ 261, subd. (2), 664) and first degree murder with the special circumstance that the murder occurred during the commission of attempted rape (Pen. Code, §§ 187, 190.2, subd. (a)(17)(iii)). The court further found true allegations that each offense involved the personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)), and that the attempted rape also involved the intentional infliction of great bodily injury (Pen. Code, § 12022.8). Defendant was thereupon sentenced to state prison for the term of life imprisonment without possibility of parole.

On his appeal from the ensuing judgment of conviction defendant contends that (1) the interrogating officers persistent refusal to honor his invocation of his constitutional privilege against self-incrimination during the first session was so egregious as to taint the subsequent confession and disqualify it for admission at the trial, and (2) there was insufficient evidence of attempted rape to sustain either his conviction on that count or the special circumstance finding. We find the first contention meritorious and sufficient to require reversal of the judgment. Defendant’s second contention we find to be without merit.